R. v. Cahill, 2017 BCPC 132 (CanLII)
Citation: R. v. Cahill Date: 20170412
Registry: Powell River
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
Criminal
REGINA
v.
LEE WYATT CAHILL
DECISION
OF THE
HONOURABLE JUDGE R. MILLER
Counsel for the Crown: Heather Pineo
Counsel for the Defendant: Hovan Patey
Place of Hearing: Powell River, B.C.
Date of Hearing: April 7, 2017
Date of Judgment: April 12, 2017
[1] In this case, Lee Cahill was charged with possessing marijuana for the purpose of trafficking on Information 15951. This charge arose because he was an employee in a marijuana retail outlet in Powell River called Wee Medical. This outlet is apparently part of a chain of such outlets throughout B.C. On June 9, 2016, an undercover officer entered the store and interacted with Mr. Cahill. They had a conversation about what is required by Wee Medical to purchase marijuana. That officer then left. The police later returned with a search warrant. They found Mr. Cahill alone in the store with about six thousand dollars cash and several kilograms of packaged marijuana apparently available for sale. It was Mr. Cahill’s second day on the job. I am told the Wee Medical store has been allowed to remain open.
[2] The matter was scheduled for trial before me the morning of April 7, 2017. When the matter was called Mr. Cahill was present, his lawyer Hovan Patey appeared by telephone, and Heather Pineo appeared for the Federal Crown. I was told there would not be a trial as the parties had agreed upon a “common law peace bond.” I asked for authority for the position that such a resolution was available. I was provided a casebook, which I found helpful, and submissions from both counsel on the matter. I read the cases and considered the matter over the lunch break. I concluded I could not do what counsel wanted, but I did not have time to prepare a judgment without adjourning other matters set that afternoon. So I advised the parties that I would not impose a common law peace bond on Mr. Cahill and I then adjourned the matter, with the consent of the parties, to a later date so they could decide how to proceed. I said I would file my decision later. This is that decision. I do not know what has happened with Mr. Cahill’s charges. I confirmed I am not seized with the matter.
[3] I am of the understanding and always have been that, despite the S.C.C. decision in Doyle, 1976 CanLII 11 (SCC), [1977] 1 S.C.R. 597 (which says, and implies, that as Provincial Court Judges are creatures of statute, any authority we seek to exercise must be found in statute) we have a common law jurisdiction on facts established to our satisfaction to bind a party over to keep the peace. This jurisdiction was confirmed in B.C. by our Supreme Court in R. v. Chohan (1969), 1968 CanLII 849 (BC SC), 1 CCC 19 and other cases since that time. It is referred to as a jurisdiction to dispense “preventative justice.” Many cases have dealt with when and how this jurisdiction can and should be exercised. None, however, have been referred to me, nor have I found any that deal with the issues raised before me. To do what is urged here, is, in my opinion, beyond the conventional situations where common law peace bonds have been utilized.
[4] In Chohan it was said that “a peace bond is not a finding of guilt or a criminal conviction. A peace bond is preventative justice in order to keep the peace in general and, in most instances, specifically in regards to one or more named persons. In Order that a common law peace bond be entered reflects a finding by the court that there was a basis for apprehending that the appellant would commit a breach of the peace.”
[5] Here I am told that because Mr. Cahill engaged in the retail marijuana on the day in question and because of some of what he said during his dealings with the undercover officer, I should be satisfied that unless I order him to enter into a common law peace bond, he may do so again. Further I am told that if he did do that it would be a “breach of the peace.” Leaving aside the questionable proposition that because Mr. Cahill worked in a marijuana store once, I should reasonably apprehend he will do so again unless I order him into a common law peace bond, I have concluded the behaviour in question is not a “breach of the peace”.
[6] An excellent review of the meaning of the term “breach of the peace” is contained in R. v. Siemens (2012), ABPC 116, a decision of the Alberta Provincial Court.
[18] The term ‘breach of the peace’ has itself been defined by the court in Frey v. Fedoruk, 1950 CanLII 24 (SCC), [1950] S.C.R. 517 (S.C.C.) as follows:
It may be difficult to define exhaustively what is a breach of the peace but, for present purposes, the statement in Clerk and Lindsell on Torts, (10th edition), page 298 may be accepted:
A breach of the peace takes place when either an actual assault is committed on an individual or public alarm and excitement is caused. Mere annoyance or insult to an individual stopping short of actual personal violence is not a breach of the peace. Thus a householder - apart from special police legislation - cannot give a man into custody for violently and persistently ringing his door-bell.
The ‘peeping tom’ in this particular case was found not to have breached the peace.
[19] In Brown v. Durham (Regional Municipality) Police Force (1998), 1998 CanLII 7198 (ON CA), 131 C.C.C. (3d) 1 (Ont. C.A.), the court considered the term ‘breach of the peace’ and commented (at para. 73):
A breach of the peace does not include any and all conduct which right thinking members of the community would regard as offensive, disturbing, or even vaguely threatening. A breach of the peace contemplates an act or actions which result in actual or threatened harm to someone. Actions which amount to a breach of the peace may or may not be unlawful standing alone. Thus, in Percy v. D.P.P., [1995] 3 All. E.R. 124 at 131 (Q.B.), Collins, J. observed:
The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established.
[20] The authors of The 2012 Annotated Tremeear’s Criminal Code, Thomson Reuters Canada Ltd., Toronto address the term ‘breach of the peace’ in the following terms (at p. 105):
‘Breach of the peace’ is not defined in the section (s. 30 C.C.), or elsewhere. It occurs whenever harm is actually or likely to be done to a person, or in his/her presence to his/her property, or a person is in fear of being so harmed through and assault, affray, riot unlawful assembly or other disturbance.
The Supreme Court has considered that a person committing a disturbance in a public place can be said to have breached the peace. See R. v. Biron (1975), 1975 CanLII 13 (SCC), [1976] 2 S.C.R. 56 (S.C.C.). As would the participants in a consensual fight in public. See: R. v. Bergner (1987), 1987 ABCA 132 (CanLII), 78 A.R. 331 (Alta. C.A.).
[7] It is clear that a “breach of the peace” has to be something involving violence or something akin to violence or something likely to provoke violence.
[8] Clearly the term would not include Mr. Cahill’s activities within the Wee Medical marijuana retail store, unlawful though they may, or may not, have been.
[9] I was told that because both counsel agreed that I should order Mr. Cahill to enter into a common law peace bond, this should be considered by me to be a “joint submission” and that therefore the principles from the S.C.C. decision of Anthony Cook and Her Majesty apply. However I disagree. This is not the court imposing a sentence different from that agreed to by counsel.
[10] I have simply refused to order what I have concluded would be a resolution not legally permitted and sent the matter to another day. Even if the principles enunciated by the court in the Anthony Cook case did apply, I have concluded that ordering Mr. Cahill to enter into a common law peace bond would be unlawful and that would, of course, be contrary to the public interest.
The Honourable Judge R. Miller
Provincial Court of British Columbia